Lisa S. Swanquist v. United States Postal Service 01997112 12-05-00 . Lisa S. Swanquist, Complainant, v. William J. Henderson, Postmaster General, United States Postal Service, Agency. Appeal No. 01997112 Agency No. 4J480015099 DECISION INTRODUCTION Complainant filed an appeal with this Commission from a final agency decision concerning her complaint of unlawful employment discrimination in violation of Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq. Upon review, the Commission finds that complainant's complaint was properly dismissed pursuant to 29 C.F.R. § 1614.107(a)(2), due to the untimely filing of the formal complaint.<1> ISSUE PRESENTED The issue presented herein is whether the agency properly dismissed complainant's formal EEO complaint for failure to file within fifteen (15) days of receiving the notice of right to file. BACKGROUND Complainant filed a formal complaint on July 14, 1999 in which she alleged discrimination on the basis of sex when she was harassed during her pregnancy by her supervisors. In its final decision, the agency dismissed the complaint, concluding that complainant failed to file her complaint within 15 days of receiving the notice of right to file. It is from that decision that complainant appeals. Analysis and Findings EEOC Regulation 29 C.F.R. § 1614.106(b) requires the filing of a complaint with an appropriate agency official within 15 calendar days after the date of receipt of the notice of the right to file a formal complaint. An agency shall dismiss a complaint or a portion of a complaint that fails to comply with the 15-day time limit contained in 29 C.F.R. § 1614.107(a)(2), unless the agency extends the time limits in accordance with 29 C.F.R. § 1614.604(c). Under 29 C.F.R. § 1614.604(c), this time limit is subject to waiver, estoppel, and equitable tolling. The record indicates that complainant received the notice of right to file a formal complaint on June 24, 1999. Although the notice indicated that complainant had to file a formal complaint within 15 calendar days of its receipt, complainant did not file her formal complaint until July 14, 1999, which is beyond the limitation period. For the reasons set forth below, complainant has failed to provide sufficient justification for equitable tolling as to her complaint. The complainant set forth several arguments that amount to requests for an equitable tolling; however, sufficient justification for tolling the requirements of 29 C.F.R. § 1614.106(b) has not been presented. First, complainant explains that she missed the 15 day time limit because the “original letter did not explain what all the 29 C.F.R. codes mean.” Complainant also argues that “another person [she] was speaking to regarding the complaint...mistakenly told [her that she had] 45 days to submit the formal complaint.”<2> On review of the record, specifically the notice of right to file, the Commission finds that complainant was given detailed instructions on how to file a formal complaint and to whom the complaint should be sent. Regardless of whether complainant understood the various EEOC Regulations or whether she was misinformed by “another person,” the notice of right to file clearly gives instructions to the complainant as to a timely filing. Complainant further argues that she had two complaints open at the time she received the notice of right to file, causing her to confuse the two files. This argument is unpersuasive, however, because complainant's confusion, without more, does not present sufficient grounds for extending the 15-day time limit. Moreover, the record establishes that complainant went through the informal counseling process with an EEO counselor who provided her with the required documents, including information about the time limits as to the case at hand. In regard to complainant's claim that the recent delivery of her third child prevented her from filing her complaint in a timely manner, the Commission has consistently held that an extension is warranted only where an individual is so incapacitated by her physical or mental health condition that she is unable to meet the regulatory time limits. See Crear v. United States Postal Service, EEOC Request No. 05920700(October 29, 1992); Weinberger v. Department of the Army, EEOC Request No. 05920040(February 21, 1992); Hickman v. Department of the Navy, EEOC Request No. 05910707(September 30, 1991); Johnson v. Department of Health and Human Services, EEOC Request No. 05900873(October 5, 1990); and Zelmer v. United States Postal Service, EEOC Request No. 05890164(March 8, 1989). Here, complainant fails to provide any information as to when she delivered her child, nor does she provide any medical evidence to establish that she was physically or mentally incapacitated during the time period at issue. Accordingly, the Commission finds that complainant has not provided specific evidence in the instant case that would justify an equitable tolling. CONCLUSION Accordingly, the Commission holds that the agency's decision to dismiss complainant's formal EEO complaint for failure to comply with the 15-day time limit contained in 29 C.F.R. § 1614.107(a)(2) was proper, and is therefore, AFFIRMED. STATEMENT OF RIGHTS - ON APPEAL RECONSIDERATION (M0900) The Commission may, in its discretion, reconsider the decision in this case if the complainant or the agency submits a written request containing arguments or evidence which tend to establish that: 1. The appellate decision involved a clearly erroneous interpretation of material fact or law; or 2. The appellate decision will have a substantial impact on the policies, practices, or operations of the agency. Requests to reconsider, with supporting statement or brief, must be filed with the office of federal operations (OFO) within thirty (30) calendar days of receipt of this decision or within twenty (20) calendar days of receipt of another party's timely request for reconsideration. See 29 C.F.R. § 1614.405; Equal Employment Opportunity Management Directive for 29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests and arguments must be submitted to the Director, Office of Federal Operations, Equal Employment Opportunity Commission, P.O. Box 19848, Washington, D.C. 20036. In the absence of a legible postmark, the request to reconsider shall be deemed timely filed if it is received by mail within five days of the expiration of the applicable filing period. See 29 C.F.R. § 1614.604. The request or opposition must also include proof of service on the other party. Failure to file within the time period will result in dismissal of your request for reconsideration as untimely, unless extenuating circumstances prevented the timely filing of the request. Any supporting documentation must be submitted with your request for reconsideration. The Commission will consider requests for reconsideration filed after the deadline only in very limited circumstances. See 29 C.F.R. § 1614.604(c). COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (S0900) You have the right to file a civil action in an appropriate United States District Court within ninety (90) calendar days from the date that you receive this decision. If you file a civil action, you must name as the defendant in the complaint the person who is the official agency head or department head, identifying that person by his or her full name and official title. Failure to do so may result in the dismissal of your case in court. "Agency" or "department" means the national organization, and not the local office, facility or department in which you work. If you file a request to reconsider and also file a civil action, filing a civil action will terminate the administrative processing of your complaint. RIGHT TO REQUEST COUNSEL (Z1199) If you decide to file a civil action, and if you do not have or cannot afford the services of an attorney, you may request that the Court appoint an attorney to represent you and that the Court permit you to file the action without payment of fees, costs, or other security. See Title VII of the Civil Rights Act of 1964, as amended, 42 U.S.C. § 2000e et seq.; the Rehabilitation Act of 1973, as amended, 29 U.S.C. §§ 791, 794(c). The grant or denial of the request is within the sole discretion of the Court. Filing a request for an attorney does not extend your time in which to file a civil action. Both the request and the civil action must be filed within the time limits as stated in the paragraph above ("Right to File A Civil Action"). FOR THE COMMISSION: ______________________________ Carlton M. Hadden, Director Office of Federal Operations __12-05-00________________ Date 1On November 9, 1999, revised regulations governing the EEOC's federal sector complaint process went into effect. These regulations apply to all federal sector EEO complaints pending at any stage in the administrative process. Consequently, the Commission will apply the revised regulations found at 29 C.F.R. Part 1614 in deciding the present appeal. The regulations, as amended, may also be found at the Commission's website at www.eeoc.gov. 2Complainant presents no evidence that it was an agency official who mislead her.